Filed 1/16/26 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082533
v. (Super.Ct.No. FVI901482)
CESAR ROBERTO RODRIGUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael S. Dauber,
Judge. Affirmed.
Carl J. Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D.
Butera, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant Cesar Roberto Rodriguez appeals an order denying his
Penal Code1 section 1172.6 resentencing petition at the prima facie stage of the
proceedings. We affirm.
PROCEDURAL BACKGROUND2
In 1992, a jury found defendant guilty of two counts of first degree murder.
(§ 187, subd. (a), counts 1 & 2), one count of attempted murder (§§ 664/187, subd. (a),
count 3),3 one count of kidnapping to commit robbery, with a true finding that the victim
suffered great bodily injury (§ 209, subd. (b)(1), count 4), and two counts of kidnapping
to commit robbery, with a true finding that the victim suffered death (§ 209, subd. (b)(1),
counts 5-6). As to counts 1 and 2, the jury found true the special circumstance of
multiple murder (§ 190.2, subd. (a)(3)), murder in the commission of robbery (§ 190.2,
subd. (a)(17)(A)),4 and murder in the commission of kidnapping (§ 190, subd.
(a)(17)(B)). As to all counts, the jury found true the allegation that a principal to the
1 All further statutory references will be to the Penal Code, unless otherwise indicated.
2 Because the facts of the case are not relevant to the issue raised on appeal, we have not included a statement of facts.
3 The offense was originally incorrectly described as first degree attempted murder in the abstract of judgment, but the abstract was later corrected to reflect the offense as simply attempted murder.
4 The jury’s true finding on the murder in commission of a robbery special circumstance was subsequently reversed on appeal for insufficient evidence. (People v. Alvarado (Dec. 19, 2013, E054118 [nonpub opn.].)
2 crime personally discharged a firearm causing death (§ 12022.53, subds. (d) & (e));
however, the court subsequently ordered this finding stricken. On July 22, 2019, a trial
court sentenced defendant to a total term of nine years plus life, plus life without the
possibility of parole.
On January 24, 2022, defendant filed a petition for resentencing under former
section 1170.95 (renumbered section 1172.6 by Stats. 2022, ch. 58, effective June 30,
2022)5, alleging that he was entitled to relief under Senate Bill No. 1437 (Senate Bill
1437). The court appointed counsel and set a hearing.
On October 27, 2023, the trial court held a hearing and stated that it reviewed the
record of conviction, specifically the verdict forms and the instructions that were given to
the jury. The court denied defendant’s resentencing petition, finding he was ineligible for
relief as a matter of law because the record of conviction “provides viable grounds for
murder and attempted murder convictions.” The court specifically referenced the “malice
instructions and aiding and abetting instructions.” The court further noted that “[t]here
were no instructions given to the jury concerning the natural and probable consequences
theory of murder liability thus eliminating that impermissible theory for the jury to base
its verdict.” Defendant filed a timely notice of appeal.
5 To avoid confusion, we will refer to the statute as section 1172.6 in this opinion.
3 DISCUSSION
The Trial Court Properly Denied the Resentencing Petition
Defendant contends the trial court erred in summarily denying his resentencing
petition, as to his murder convictions, at the prima facie stage. He asserts that his jury
was instructed on two theories—malice aforethought and felony murder—and that under
the felony-murder instructions given at that time, the jury was not required to find that he
“harbored any state of mind other than the intent to commit the underlying felony.” As a
result of the changes made to the felony-murder law enacted after his trial, a jury is
required to find a defendant is either the actual killer, intended to kill, or was a major
participant and engaged in reckless indifference to life during the commission of the
felony. He claims the record of conviction does not demonstrate the jury found he was
either the actual killer or that he possessed the intent to kill. Defendant concludes that
because the record of conviction shows he was convicted of murder where the jury was
presented with now-abrogated felony-murder instructions, and the jury could have relied
on them, “reversal with direction to hold an OSC is the appropriate outcome.”
The People contend that defendant’s argument completely ignores the jury’s true
finding on the multiple murder special circumstance, which required the jury to find he
was either the actual killer or aided and abetted with the intent to kill. Thus, since the
record shows defendant was convicted of first degree murder as the actual killer or direct
aider and abettor who acted with an intent to kill, he is ineligible for relief as a matter of
law.
4 We agree with the People and conclude the court properly denied defendant’s
resentencing petition.
A. Resentencing Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Stats.
2018, ch. 1015 (Senate Bill 1437)) was enacted “‘to amend the felony murder rule and
the natural and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) Thus, Senate Bill 1437 “substantially modified the law relating to vicarious
liability for murder by eliminating the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder [Citation] and by narrowing the scope of
felony murder [Citation].” (People v. Lopez (2022) 78 Cal.App.5th 1, 11 (Lopez).)
“Senate Bill 1437 added three separate provisions to the Penal Code. First, to
amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): ‘A
participant in the perpetration or attempted perpetration of [qualifying felonies] in which
a death occurs is liable for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and acted with reckless
5 indifference to human life, as described in subdivision (d) of Section 190.2.’” (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile), superseded by statute on another ground as
stated in People v. Wilson (2023) 14 Cal.5th 839, 869.)
Second, Senate Bill 1437 “eliminated the natural and probable consequences
doctrine by adding the following language to section 188: ‘Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.’” (Lopez, supra, 78 Cal.App.5th at p. 11; § 188,
subd. (a)(3); Gentile, supra, 10 Cal.5th at pp. 842-843.)
“Third, Senate Bill 1437 added section 1170.956 to provide a procedure for those
convicted of felony murder or murder under the natural and probable consequences
doctrine to seek relief under the two ameliorative provisions above." (Gentile, supra, 10
Cal.5th at p. 843.)
Under section 1172.6, the relief process begins with the filing of a petition
containing a declaration that all requirements for eligibility are met (§ 1172.6, subd.
(b)(1)(A)), “including that ‘[t]he petitioner could not presently be convicted of murder or
attempted murder because of changes to [Penal Code] Section 188 or 189 made effective
January 1, 2019,’ the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (People
v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
6 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We will cite to section 1172.6 for ease of reference.
6 If the petition complies with the requirements of section 1172.6, subdivision
(b)(1), “the court shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief.” (§ 1172.6, subd. (c).) Where a petitioner has made the
requisite prima facie showing that he is entitled to relief, the court must issue an order to
show cause and hold an evidentiary hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c)
& (d)(1).)
At the prima facie stage, the court may deny a petition only if the petitioner is
ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) In
other words, the petition and the record of conviction must “establish conclusively that
the defendant is ineligible for relief.” (Strong, supra, 13 Cal.5th at p. 708.) This is a pure
question of law that we review de novo. (Lopez, supra, 78 Cal.App.5th at p. 14.) We
affirm if the judgment is correct, regardless of the trial court’s reasoning. (People v.
Eynon (2021) 68 Cal.App.5th 967, 976.)
In determining whether the defendant has made a prima facie showing of
entitlement to relief, the trial court “‘should accept the assertions in the petition as true
unless facts in the record conclusively refute them as a matter of law.’ [Citation.] The
court’s authority to summarily deny a petition is thus limited to ‘readily ascertainable
facts' taken from the record of conviction . . . ” (People v. Davenport (2021) 71
Cal.App.5th 476, 481 (Davenport).) The record of conviction includes the charging
document, verdict forms, closing arguments, and jury instructions. (People v. Jenkins
7 (2021) 70 Cal.App.5th 924, 935.) “In reviewing any part of the record of conviction at
this preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.)
B. The Record of Conviction Demonstrates Defendant is Ineligible for Relief as a Matter
of Law
Defendant essentially argues that reversal is required simply because the record of
conviction shows he was convicted of murder “where the jury was presented with felony-
murder instructions that did not comport with the current version of section 189,
subdivision (e).” He further claims the record of conviction does not demonstrate the
jury found he was either the actual killer (§ 189, subd. (e)(1)) or possessed the intent to
kill (§ 189, subd. (e)(2)). We disagree and conclude the record of conviction conclusively
shows he was ineligible for relief as a matter of law.
As relevant here, the jury was instructed that defendant was being prosecuted for
murder under two theories: (1) malice aforethought and (2) felony murder. The jury
convicted him of first degree murder and found true special circumstances, including the
multiple murder special circumstance. (§ 190.2, subd. (a)(3).) We initially note that the
court found, and defendant does not dispute, that the jury was not instructed on “the
natural and probable consequences theory of murder liability[,] thus eliminating that
impermissible theory for the jury to base its verdict.” Defendant is correct that, that
under changes to the felony-murder law enacted after his trial, a jury is now required to
find a defendant is either the actual killer, had the intent to kill, or was a major participant
8 in the underlying felony who acted with reckless indifference to human life. (See Strong,
supra, 13 Cal.5th at pp. 707-708.) However, just because the jury “was presented with
felony-murder instructions that did not comport with the current version of section 189,
subdivision (e),” reversal is not automatically required, as defendant claims.
Moreover, contrary to defendant’s claim that the record of conviction does not
show the jury found he was either the actual killer or had the intent to kill, the record of
conviction conclusively establishes that the jury found he was the actual killer or aided
and abetted the murders with the intent to kill.
As to counts 1 and 2, the jury was instructed that defendant was charged with
murder and that “[t]o prove that a defendant is guilty of this crime, the People must prove
that:
1. The defendant committed an act that caused the death of another person; AND
2. When the defendant acted, he had a state of mind called malice aforethought.”
The jury was instructed that proof of either implied or express malice was
sufficient to establish the requisite state of mind. The jury instructions explained that
“[t]he defendant acted with express malice if he unlawfully intended to kill.” It also
explained that “[a] defendant is guilty of first degree murder if the People have proved
that he acted willfully, deliberately, and with premeditation. The defendant acted
willfully if he intended to kill. The defendant acted deliberately if he carefully weighed
the considerations for and against his choice and, knowing the consequences, decided to
9 kill. The defendant acted with premeditation if he decided to kill before completing the
act that caused death.”
The jury was also instructed that “a person is guilty of crime whether he or she
committed it personally or aided and abetted the perpetrator” and that someone aids and
abets crime if he “knows of the perpetrator’s unlawful purpose and . . . specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.”
Additionally, the court instructed the jury as to the multiple-murder special
circumstance, in part, as follows: “If you decide that a defendant is guilty of first degree
murder but was not the actual killer, then, when you consider the special circumstance of
Multiple Murder, you must also decide whether the defendant acted with the intent to kill.
[¶] In order to prove these special circumstances for a defendant who is not the actual
killer but who is guilty of murder as an aider and abettor, the People must prove that the
defendant acted with the intent to kill. . . . If a defendant was not the actual killer, then
the People have the burden of proving beyond a reasonable doubt that he acted with the
intent to kill for the special circumstance of Multiple Murder to be true. If the People
have not met this burden, you must find these special circumstances have not been
proved true for that defendant.” The court further instructed the jury that to prove the
special circumstance of multiple murder under section 190.2, subdivision (a)(3) true, “the
People must prove that: [¶] 1. The defendant has been convicted of at least one charge of
10 first degree murder in this case; and [¶] 2. The defendant has also been convicted of at
least one additional charge of either first or second degree murder in this case.”
We conclude that the instructions show the jury convicted defendant of first degree
murder based on his own intent to kill, either as the actual killer or as an aider or abettor.
In other words, malice was not imputed to him based solely on his participation in a
crime. (§ 188, subd. (a)(3).)
We acknowledge that the jury was instructed it could find defendant guilty of first
degree murder under a theory of felony murder if it found that he (1) “committed
[r]obbery or [k]idnap”; (2) “intended to commit [r]obbery or [k]idnap”; (3) if he did not
personally commit robbery or kidnap, then a direct perpetrator did; and (4) while
committing robbery or kidnap, the perpetrator cause the death of another person.
However, as the People point out, the jury found true the multiple-murder special
circumstance pursuant to section 190.2, subdivision (a)(3) as to both murders. Notably,
the jurors were instructed that, “[i]f a defendant was not the actual killer, then the People
have the burden of proving beyond a reasonable doubt that he acted with the intent to kill
for the special circumstance of Multiple Murder to be true.” Thus, since the jury found
the special circumstance to be true, it necessarily found that, if defendant was not the
actual killer, he had the intent to kill in aiding and abetting the murders. We observe this
finding was required even before the enactment of Senate Bill 1437. (See People v.
Nunez and Satele (2013) 57 Cal.4th 1, 45 [“the trial court must instruct the jury that to
11 find true a multiple-murder special-circumstance allegation as to that defendant, it must
find that the defendant intended to kill the murder victims”].)
Ultimately, to establish a prima facie case for relief, defendant was required to
show he “could not presently be convicted of murder . . . because of changes to Section
188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3); People v. Berry-
Vierwinden (2023) 97 Cal.App.5th 921, 935.) He has not done so.
The record of conviction conclusively demonstrates that defendant is ineligible for
relief. In finding the multiple murder special circumstance true, the jury specifically
found that he was the actual killer or he aided and abetted the murders with intent to kill.
Aiders and abettors who act with the intent to kill are not eligible for relief. (See,
Gentile, supra, 10 Cal.5th at p. 848; See also, People v. Coley (2022) 77 Cal.App.5th
539, 547 [“[a]n intent to kill is the equivalent of express malice”] and Lopez, supra, 78
Cal.App.5th at p. 14 [petitioner is ineligible as a matter of law if record of conviction
establishes he “acted with malice aforethought that was not imputed based solely on
participation in a crime”].) Thus, the court properly found that defendant was ineligible
for relief under section 1172.6.
In his reply brief, defendant argues the People’s claim that the jury’s true finding
on the multiple-murder special circumstance precludes him from demonstrating a prima
facie case for relief is an implicit request to apply the doctrine of issue preclusion, or
collateral estoppel. Defendant also claims there was no dispute that he was not the actual
killer, he had no role in planning the victims’ kidnapping, and “[a]ll the evidence
12 established [he] played a minor role in guarding the kidnap victims, and had no
knowledge of any plans to ultimately kill them.” We initially note that the trial court’s
authority to summarily deny a petition is “limited to ‘readily ascertainable facts' taken
from the record of conviction. . . .” (Davenport, supra, 71 Cal.App.5th at p. 481.) In
accord, in reviewing the record of conviction, this court cannot “engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’” (Lewis, supra, 11
Cal.5th at p. 972.)
Defendant cites Strong, supra, 13 Cal.5th at p. 716 in contending that the People
have failed to meet their burden of establishing and demonstrating the elements of
collateral estoppel and therefore cannot rely on the multiple-murder special circumstance
to preclude him from relief. However, Strong, does not aid defendant since it involved
the jury’s true finding on felony-murder special circumstance allegations that he was a
“major participant” who acted “with reckless indifference to human life,” which were
made before the decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522 (Banks and Clark). Banks and Clark significantly changed the
prevailing understanding of the “major participant” and “reckless indifference” elements.
(Strong, supra, 13 Cal.5th at pp. 703, 706-707.) The Strong court held that “[b]ecause
Strong’s case was tried before both Banks and Clark, the special circumstance findings do
not preclude him from making out a prima facie case for resentencing under section
1172.6.” (Id. at p. 721.) In contrast to Strong, the People here are relying on the true
13 finding on the multiple-murder special circumstance, which required a finding that
defendant had the intent to kill. (See ante.)
Moreover, we note the Supreme Court in Strong agreed that prior special
circumstances findings “can have preclusive effect.” (Strong, supra, 13 Cal.5th at p.
716.) We further note that collateral estoppel “‘“protect[s] litigants from the burden of
relitigating an identical issue with the same party”’” and “‘“promote[s] judicial economy
by preventing needless litigation.”’” (Ibid.) The People are not asking to relitigate any
issue here.
Defendant also cites the Supreme Court’s decision in People v. Curiel (2023) 15
Cal.5th 433 (Curiel) for the proposition that a finding of intent to kill “does not, itself,
conclusively establish that [he] is ineligible for relief.” (Id. at p. 441.) However, the
circumstances of Curiel are readily distinguishable. In that case, the Supreme Court
clarified that a section 1172.6 petition may be denied at the prima facie stage only where
“the record conclusively establishes every element of the offense,” and the intent to kill
“is only one element” that “does not by itself establish any valid theory of liability.”
(Id. at p. 463.) Further, the jury in Curiel was instructed on the now-impermissible
natural and probable causes theory. The Supreme Court specifically noted that the
scenario discussed in Curiel, “where a defendant is liable for murder under the natural
and probable consequences doctrine, and acts with malice aforethought, but is not liable
as a direct aider and abettor,” is “‘quite narrow’ and relevant only to a ‘very small set of
cases.’” (Id. at p. 470.) Curiel recognized that its holding was limited and would not
14 necessarily apply in other settings, stating: “[W]e note that our holding today does not
necessarily apply to other cases where the jury found intent to kill, or even other cases
where the jury found true the gang-murder special circumstance . . . . We hold only that
under the jury instructions here, the findings the jury must have made are insufficient to
conclusively establish that Curiel is liable for murder under current law.” (Id. at p.471.)
Here, unlike Curiel, the jury was never instructed on the natural and probable
consequences theory. Moreover, contrary to defendant’s claim, Curiel’s narrow holding
does not stand for the broad proposition that a jury finding of intent to kill cannot
preclude a petitioner from making a prima facie case for resentencing under section
1172.6.
We conclude that defendant failed to establish a prima facie case, and the court
properly found him ineligible for relief under section 1172.6.
DISPOSITION
The order denying defendant’s resentencing petition under 1172.6 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J. CODRINGTON J.